[nagdu] Emotional Support Animals: Access or No Access to Public Accommodations?

[Ginger Kutsch]

Emotional Support Animals: Access or No Access to Public Accommodations? 

11/24/2014

by Michelle Maslowski, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Source:
http://www.jdsupra.com/legalnews/emotional-support-animals-access-or-no-2069
1/

 

A recent article in The New Yorker (“PETS ALLOWED: Why are so many animals
now in places where they shouldn’t be?” October 20, 2014) highlights the
disconnect between perception and reality when businesses must deal with
patrons attempting to bring “emotional support animal” (ESAs) into public
areas. The author, Patricia Marx, chronicles five days in which she took
various, less-than-cuddly animals (namely, a red-eared slider turtle, a
Mexican milk snake, a four-and-one-half feet tall alpaca, a Royal Palm
turkey, and a one-year-old pig) around places in New York City and Boston.
She attempted to enter public areas with the animals, including museums,
high-end fashion stores, and restaurants, and use public transportation. Her
purpose? To highlight how little individuals, especially business owners and
employees, know about the law surrounding ESAs. The article may also
demonstrate what we know from our clients: despite the letter of the law,
businesses will go to great lengths, even accepting absurd applications of
the Americans with Disabilities Act (ADA), to avoid litigation. Based on
Marx’s experiences, businesses rarely challenged her and allowed her to
bring all sorts of animals into these businesses when she simply said “I
have a letter” and it was “against the law” to exclude the animal. Marx
emphasizes that the perception that businesses must accommodate purported
ESAs is not only mistaken, but it is also exploited by many ESA owners at
the expense of the experience of other customers.

 

The article raises an important question that businesses are facing on an
increasing basis: what do you do when a customer demands that an ESA be
allowed to accompany him or her onto the premises? The answer, surprisingly,
is not typically based on federal law, but on individual states’ laws and a
business’s tolerance of animals on its premises. The ADA, which is routinely
cited by individuals who seem to be taking advantage of the perception that
ESAs must be granted access, does not mandate free entry of any animal into
public accommodations. Only a “service animal” can gain entrance to public
accommodations under Title III of the ADA and, since March 15, 2011, the
U.S. Department of Justice defined a “service animal” solely as a dog (or a
miniature horse) that is individually trained to do work or perform tasks
for people with disabilities. 28 C.F.R. §36.104.

 

In contrast, ESAs are untrained animals that provide solace to someone with
a mental condition, and the ESAs that accompanied Marx around New York are
not included in the ADA’s definitions. Animals that only provide “emotional
support” to people with disabilities, even if those animals are dogs and
miniature horses, are specifically excluded from the definition of “service
animal” and thus not entitled to access to public accommodations. Even if an
ESA is used as part of a person’s medical treatment plan as “therapy
animal,” the ADA does not compel businesses to accommodate the animal under
Title III. Moreover, according to the ADA regulations, service animals must
also be under the control of the owner, either by physical means (such as
with a harness or leash) or non-physical means (such as through voice or
visual signals) where the user cannot maintain a physical restraint. Thus,
even if an ESA is granted access to a business, nothing in the ADA provides
the animal unfettered reign to interfere with the experiences of the
customers around it.

 

Even though the ADA does not compel businesses to permit access to ESAs, a
few federal and varying state laws may require access in narrow
circumstances, thus causing increased confusion for businesses. The Fair
Housing Act requires landlords and homeowners associations to provide a
reasonable accommodation for individuals with disabilities, which may or may
not require that permission be granted to tenants and owners to bring ESAs
onto residential properties. The Air Carrier Access Act of 1986 provides
that air carriers must permit service animals to accompany passengers under
certain restrictions, but does not specifically exclude ESAs from its
definition of “service animal.” However, in both the housing and air travel
scenarios, the owner of the animal must have a corroborating letter from a
health professional regarding the need for the ESA.

 

Some states have also passed laws that might provide access for ESAs as a
reasonable accommodation. Some of these state laws restrict the reasonable
accommodation to disabled employees, while others are more general in
nature. Thus, while a business generally is not required to allow access for
ESAs under the ADA, uncertainty reigns in this area due to other statutes
that might provide access in certain situations.

 

Given the vast confusion surrounding ESA access to public accommodations,
businesses are wise to develop plans for addressing customers who present
themselves with such animals. The first step is to determine if any state
laws where the business operates compel access for an ESA. Equally important
is to determine what state laws and regulations, such as health and safety
codes, may prohibit the presence of ESAs and whether there may be exceptions
for ESAs.

 

Even if federal and state laws do not compel access for an ESA, many
businesses may wish to accommodate such animals (if not otherwise
prohibited) if it will avoid unpleasant confrontations and potentially bring
a client in the door. Business have alternatives to allowing ESAs full
access, including requiring the owner to hold and maintain physical control
of the animal throughout the time spent at the business, requiring the
animal to be housebroken, or providing a designated area for animals while
their owners are on-site. Ultimately, businesses should consider what
factors will lead them to refuse access to ESAs and train their employees
accordingly. Even with a plan, businesses will likely continue to struggle
with the increased demand for ESA access until federal and state laws on the
issue can be reconciled.